Woman acquitted in toddler's drug death

November 16, 2010

A DuPage County jury today acquitted a Chicago woman who had been charged with giving a fatal overdose of a common over-the-counter drug to a friend's ailing 2-year-old son when all three were staying at a Naperville motel.

Theresa Gary, 40, was charged with reckless conduct/causing great bodily harm for having allegedly given a fatal dose of Benadryl-D to Joseph Balkcom on Nov. 5, 2008, in the Naperville Best Western, 1617 N. Naperville Road. Gary and the boy had been staying there for several days with the child's mother, Alexicia Holmes, 21, of Chicago. They had been living at several locations for several weeks, including local shelters and with relatives.

The jury, which deliberated for two hours before reaching a verdict, heard testimony in the weeklong trial that consisted mostly of Gary's videotaped statement to Naperville police. The statement included several inconsistencies, but Gary always contended that she never gave the child more than a few teaspoons of the drug.

Holmes also testified that she never gave any of the drug to her son, although she admitted that purchasing the drug was her idea.

"There really wasn't a witness who could say that they saw Gary give the child that amount of drug," said Assistant Public Defender Mark Lyon. "For a guilty verdict, you had to rely on Holmes' many inconsistent statements."

Assistant State's Attorney Ann Celine O'Hallaren, who declined to comment after the verdict, had told the jury in her closing arguments that "Joseph died as a result of a reckless, senseless act."

"You are not here to decide if she meant to kill or harm Joseph, but if she was reckless," O'Hallaren said.

A toxicology report showed the child received more than 12 times the maximum therapeutic level of the drug diphenhydramine. O'Hallaren noted that the 4-ounce Benadryl bottle, about 80 percent empty, carried a warning that a physician's approval was needed to dispense the drug to a child under age 6.

The jury heard that, at one point while the child was apparently losing consciousness, Gary told Holmes several times that "the devil is in your child." Also, after calling a Chicago pastor and being told to call 911, the two adults instead purchased olive oil and wiped it on the child as blessing oil and read passages from the Bible before calling 911.

Gary didn't testify on her own behalf and, in tears, declined comment after the acquittal.